WILLIE HICKS, JR.
COMMONWEALTH OF VIRGINIA
THE CIRCUIT COURT OF MECKLENBURG COUNTY Leslie M. Osborn,
D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes,
P.C., on briefs), for appellant. 
Rosemary V. Bourne, Senior Assistant Attorney General (Mark
R. Herring, Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judges Petty and Huff Argued at
GRAFF DECKER CHIEF JUDGE
Hicks, Jr., appeals his convictions for one count each of
rape, aggravated sexual battery, and indecent liberties, in
violation of Code §§ 18.2-61, -67.3, and -370. On
appeal, he asserts that in light of the fact that he stood
charged with five counts of rape, the trial court erred by
failing to instruct the jury in a manner that ensured their
unanimity regarding which one of the multiple acts described
by the complaining witness had been proved beyond a
reasonable doubt. He also suggests that the court erred by
excluding two different types of impeachment evidence. We
hold that the appellant did not preserve his challenge to the
unanimity of the jury for appeal. We further hold that he
waived one of his evidentiary claims. As to his other
evidentiary claim, we conclude that the evidence supports the
trial court's finding that he did not establish an
adequate foundation for the admissibility of the excluded
testimony. Consequently, we affirm the convictions.
appellant was twenty years old at the time of the offenses.
The victim, Q.A., was his twelve-year-old female cousin. All
offenses occurred during an eleven-day period of time in
which the appellant and the victim were both living at a
appellant was tried for taking indecent liberties with a
child, aggravated sexual battery, and five counts of rape.
During the trial, the court refused two categories of
evidence proffered by the appellant. It excluded evidence
that the victim had genital warts and that she had previously
made false accusations of sexual abuse. The court also
refused the appellant's request to label each of the
rapes in a different fashion, such as by numbering them.
trial, the jury convicted the appellant of one count each of
indecent liberties, aggravated sexual battery, and rape. It
acquitted him of the other counts of rape. He was sentenced
to a mandatory term of life in prison for the rape, as well
as to one year for aggravated sexual battery and twelve
months for indecent liberties.
appellant challenges the trial court's use of identical
jury instructions for the five counts of rape on the ground
that they failed to require that the jury was unanimous
regarding the rape of which it found him guilty. He also
contests the court's exclusion of evidence concerning a
communicable virus and prior false accusations of sexual
Instructions and Unanimity of Rape Verdict
appellant argues that the instructions given to the jury
permitted it to find him guilty of a single count of rape
without requiring that the jurors unanimously agree upon
which particular incident supported that conviction.
Relevant Trial Events
appellant was initially charged with eight counts of rape,
each of which covered a different date or range of dates
between June 12 and June 23, 2017.
trial, the victim testified that on or about June 12, the
appellant climbed into her bed and put his penis
"inside" her vagina. When the prosecutor asked
about "the next time," the victim replied that she
was once again "in [her] room" and that "[t]he
same thing" happened. In response to a later inquiry
regarding "how many times" the appellant penetrated
her between June 12 and 23, the victim responded, "It
was . . . more than once, but I don't know exactly how
many," and she indicated that each incident occurred
"on a different day." The victim subsequently
clarified that the rapes occurred approximately "every
other day" and that the appellant raped her a total of
five rather than eight times. She then gave slightly more
detailed testimony about the "last time" he raped
the crimes, the victim reported to police that her clothes
hamper contained "three pairs of panties that probably
ha[d] semen . . . on them." The police collected three
pairs of her underwear as evidence. The appellant's DNA
was found in seminal fluid located along with the
victim's blood in the "interior crotch area" of
one of those pairs of underwear.
appellant testified at trial and denied the allegations. He
admitted, based on the DNA evidence, that the sperm found in
the victim's underwear was his. Nevertheless, he denied
having sexual intercourse with her, claiming instead that he
merely put his clothing in the same hamper.
prosecutor's motion, the trial court dismissed three of
the eight rape indictments because the victim's testimony
supported only five rape charges. Also on the
prosecutor's motion, the court amended the five rape
indictments so that they all contained identical language,
each charging the appellant with raping the victim on or
about "June 12 through June 23."
during discussion among the parties and the court regarding
the jury instructions, the appellant noted the need "to
be able to distinguish [among the rape counts] for purposes
of appeal." He asserted that "if the jury finds
[the appellant] guilty on this [rape] instruction and
innocent on this [rape] instruction[, ] the question for the
Court of Appeals is, is there sufficient evidence to sustain
its burden beyond a reasonable doubt on this rape." He
consequently argued that the court needed to devise a
"way to distinguish each of the charges in the
instructions [in order to] keep track on the record what
evidence applies to what . . . for purposes of appeal."
judge inquired, "How am I going to make [the
instructions] different?" The appellant replied that he
did not know but said that "if [the judge did not] do
it[, ] the jury could be in the position of going back there
and maybe ten of them think rape one happened and two of them
think rape three happened." The appellant asked about
"how [he would] preserve [an objection]" under
those circumstances. The judge replied that all five rape
instructions "read exactly the same . . . [with the]
date range on them." He observed that he had "done
them like that before" and "d[id not] think [he]
c[ould] impose a date on the[m]." The appellant
reiterated that not having "a way to distinguish"
presented a problem. He proposed "call[ing] them rape
one, rape two, rape three . . . so that the jury [would] at
least [be] talking about the same charge when . . .
deliberat[ing]" and the parties and the court
"c[ould also] tell which one [was] which." The
judge denied the request.
closing arguments, the court instructed the jury, "In
order to return a verdict[, ] each of you must agree upon the
verdict." It noted that the jury would receive "a
set of verdict forms," including "five verdict
forms for rape" "because there are five counts of
the three verdicts returned by the jury read as follows:
"We, the jury, find the defendant guilty of rape of a
child under the age of thirteen while being eighteen years of
age or older on or about June 12[, ] 2017 through June 23[, ]
2017." The jury also convicted the appellant of indecent
liberties and aggravated sexual battery. It acquitted him of
the remaining four rapes. The judge then said to the jury,
"[A]s we told you before, this verdict has to be a
unanimous verdict." He polled the jury regarding the
verdict, and each juror responded, "Yes," when
asked if it was his or her verdict.
for the appellant noted his intent to file "a motion to
strike the guilty verdict" because "we don't
know what rape they convicted him of," but he did not
argue that the record failed to prove that the single rape
verdict was unanimous. Additionally, although the appellant
filed a written motion to set aside the verdict, the motion
and the accompanying argument also did ...